Tunya Lodge Ltd and Anor v Kalaluka and Ors (CAZ 8 75 of 2016) [2017] ZMCA 141 (1 March 2017)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN | AT LUSAKA (Civil Jurisdiction) CAZ/08/75/2016 BETWEEN: TUNYA LODGE LIMITED ESAU SYAMUSALE SYAMUCHILIBA NEBWE 1st APPELLANT 2nd APPELLANT AND OFAPP NAMBOYA KALALUKA \ NGENDA SITUMBEKO ZAMBIA NATIONAL COMME 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Before the Hon. Mrs. Justice J. Z. Mulongoti In Chambers on the 1st day of March, 2017. For the Appellants: Mr. L. C. Zulu of Messrs Malambo & Company For the 1st and 2nd Respondents: Mr. B. Gondwe Messrs Buta Gondwe & Associates For the 3rd Respondent: No Appearance RULING Cases referred to: 1. Mashamba v. The Council of the Copperbelt University SCZ Appeal No. 262/2011 2. Moses Mulevu v. Major Chibamba and Others SCZ Appeal No. 21/2010 3. Musakanya and Shamwana v. Attorney General (1981) ZR 261 Legislation referred to: 1. Court of Appeal Rules, Statutory Instrument No. 65 of 2016 -Rl- This is an application by the appellants for extension of time to file heads of arguments and record of appeal pursuant to Order XIII Rule 3(l)(c) of the Court of Appeal Rules. The application was made by summons supported by an affidavit sworn by the 2nd appellant Esau Syamusale Syamuchiliba Nebwe, in his capacity as Chief Executive Officer and Chairman of the 1st appellant. He deposed that the appellants have appealed against the Ruling of the High Court per exhibit “ESSN1” and “ESSN2” which are copies of the Notice of Appeal and Memorandum of Appeal. However, the record of appeal and heads of arguments would not be ready by 27th December, 2016 which was the last day for filing due to the transcript of proceedings not being ready and the law firm would be going on a break from 23rd December, 2016 to mid January, 2017. That as at the date of swearing the affidavit (27/12/2016) the transcript of proceedings was still not ready. Thus, it is necessary to extend the time for filing the heads of arguments and record of appeal by 60 days. I set the 11th of January, 2017 for hearing but only the appellant’s counsel was present. He sought an adjournment on the ground that most likely the law firms were still on recess hence the respondent’s counsel’s absence. I adjourned to 24th January, 2017. On that day Mr. Gondwe sought an adjournment and intimated that he would be opposing the -R2- application on a point of law, that the matter was res judicata. He requested for time to prepare. He later filed an affidavit in opposition deposed to by Ngenda Situmbeko, the 2nd respondent and joint receiver/manager of the 1st respondent. He deposed that the application for extension of time to file the record of appeal and heads of argument is misconceived. That the matters the appellants seek to be re-litigated were already determined initially by the consent of the parties and finally by the decision of the Supreme Court on the basis of which rulings by the Deputy Registrar and the decision of the High Court Judge were made that exhibit “NS1” and “NS2” are the copies of the High Court and Supreme Court’s rulings which the appellants are deliberately disregarding. The 2nd appellant filed an affidavit in reply in which he deposed that there have been no other proceedings in the matter after the ruling by the High court of 30th September, 2016. By that ruling the High Court Judge granted leave to appeal of her own motion. Furthermore, that he had been advised by his lawyers that the grounds of opposition by the 1st and 2nd respondents are an attempt to pre-empt the intended appeal. The appellants counsel also filed a list of authorities in support of the application. -R3- At the hearing on 1st February, 2017 the appellant’s counsel relied on the summons and the affidavits sworn by the 2nd appellant. He informed the Court that time to file the heads of arguments and record of appeal expired on 27th December, 2016. Efforts were made to obtain the transcripts in the court below but it was not availed to them. Relying on the case of Mashamba v. The Council of the Copperbelt University1, he argued that the appellant has shown sufficient cause for applying for extension of time. Regarding the issue of res judicata, Mr. Zulu submitted that the Supreme Court guided in Moses Mulevu v. Major Chibamba and Others2 that a respondent who wishes to oppose an application for extension of time should so in the main appeal. Similarly in casu, the issue should be raised in the hearing of the main appeal. Mr. Gondwe equally relied on the affidavit in opposition especially the Supreme Court ruling exhibited as “NS2”. He argued that the claims by the appellants have not changed and therefore caught by the Supreme Court ruling. That in exercising its discretion to extend time the Court must also consider the chances of the appeal succeeding in accordance with Order 59 Rule 4/17. The action by the appellant amounts to an abuse of court process. This can also lead to conflicting -R4- judgments between the Supreme Court and the Court of Appeal. Furthermore, that the appellants are re-litigating a matter which has already been decided by a competent court which binds all the courts. Accordingly, the matter is res judicata. Learned counsel relied on several cases including Musakanya and Shamwana v. Attorney General3 in support of his arguments. In reply, Mr. Zulu contended that the application is for leave to extend time to file record of appeal; not for the court to hear evidence. Thus, it is not the main appeal. He reiterated that in accordance with the case of Moses Mulevu supra, that issues being raised by the respondent be dealt with in the main appeal. Furthermore, that the fact that the High Court granted leave to appeal clearly demonstrates that matter was not res judicata. I have considered the affidavit evidence and submission by both counsel. I wish to state from the outset that I am inclined to grant the application for extension of time. I am of the considered view that the issues of res judicata raised by the respondent are best suited to be dealt with in the main appeal as canvassed by Mr. Zulu. I am fortified by the Mulevu case. -R5- The grounds upon which the application for extension is premised are valid and sufficient to justify the extension of time. The application is granted. The appellant to file the record of appeal and heads of arguments within 60 days from today. Costs in the cause. Delivered at Lusaka this 1st day of March, 2017. J. Z. Mulongoti Court of Appeal Judge i -R6-